R v Antoine

The House of Lords held that the defence of diminished responsibility under section 2 of the Homicide Act 1957 is not available at a hearing conducted under section 4A(2) of the Criminal Procedure (Insanity) Act 1964, since once a jury has found the accused unfit to plead the trial terminates and the accused is no longer liable to be convicted of murder within the procedure. The court also held that, on a section 4A(2) determination, the jury are generally concerned to decide only whether the accused did the act or made the omission charged (the actus reus) and are not required to establish the mens rea of the offence, subject to the qualification that objective evidence raising defences such as mistake, accident, self-defence or involuntariness must be negatived by the prosecution beyond reasonable doubt.

Background and facts:

On 2 December 1995 a 15-year-old victim was killed. The appellant, aged 16, and a co-accused were indicted for murder. The co-accused pleaded guilty to manslaughter on the ground of diminished responsibility and was detained in hospital under a restriction order. At the appellant's trial a jury found him unfit to plead by reason of mental disability (psychiatric evidence indicated paranoid schizophrenia). Pursuant to section 4A(2) of the Criminal Procedure (Insanity) Act 1964 a jury then determined whether the appellant had done the act charged against him as the offence. Before that hearing the trial judge ruled that diminished responsibility under section 2 of the Homicide Act 1957 could not be raised at the section 4A(2) hearing. The jury found that the appellant had done the act of murder and a hospital order with unrestricted restriction was made.

Procedural history:

• Crown Court: jury found unfit to plead; judge ruled diminished responsibility not available at s4A(2) hearing and section 4A(3) finding made.
• Court of Appeal: appeal against the judge's ruling dismissed (reported [1999] 3 WLR 1204).
• House of Lords: considered a certified question and a related wider question.

Nature of the appeal and issues:

• Whether an accused, at a section 4A(2) determination after a finding of unfitness to plead, may rely on section 2 of the Homicide Act 1957 (diminished responsibility).
• Whether the jury at a section 4A(2) hearing must be satisfied of more than the physical act (in particular whether mens rea must be proved).

Court's reasoning and conclusions:

• The court interpreted the statutory scheme: once a jury determines the accused is under a disability the trial does not proceed and the accused is no longer liable to be convicted of murder under that procedure, so the condition precedent in section 2 of the Homicide Act 1957 (that but for the section the person would be liable to be convicted of murder) cannot be satisfied. Consequently diminished responsibility under section 2 cannot be raised at a section 4A(2) hearing.
• The House rejected the approach in Reg v Egan and followed the decision in Attorney-General's Reference (No. 3 of 1998), holding that the phrase "did the act" in the relevant statutes denotes the actus reus and does not ordinarily include the mens rea. Thus the jury need not generally consider mens rea at a section 4A(2) determination.
• However, if objective evidence raises defences such as mistake, accident, self-defence or involuntariness, the jury must be satisfied beyond reasonable doubt that the prosecution has negatived those defences before finding that the accused did the act.
• The court emphasised the balancing aim of section 4A between protecting mentally disabled defendants from criminal stigma and protecting the public from dangerous acts.

Relief sought: the appellant sought the right to raise diminished responsibility at the section 4A(2) hearing and/or a ruling that mens rea must be proved at such a hearing.

Appeal dismissed. The House of Lords held that (1) section 2 of the Homicide Act 1957 cannot be invoked at a hearing under section 4A(2) of the Criminal Procedure (Insanity) Act 1964 because, after a finding of unfitness to plead, the accused is no longer liable to be convicted of murder under that procedure; and (2) at a section 4A(2) determination the jury are concerned primarily with whether the accused did the act (actus reus) and need not generally be satisfied of the mens rea, but must have the prosecution negatived any objectively raised defences such as mistake, accident, self-defence or involuntariness beyond reasonable doubt.

Crown Court (Inner London Crown Court): jury found defendant unfit to plead and judge ruled diminished responsibility not available at s4A(2) hearing. Appeal to Court of Appeal dismissed ([1999] 3 WLR 1204). Point certified to the House of Lords, which delivered judgment [2000] UKHL 20.